Tag: Law

John Steinbeck passed away in 1968, leaving behind a litigious set of heirs who have fought over the right to control his literary work for decades. The most recent iteration of this legal battle, this time between Steinbeck’s daughter-in-law and Steinbeck’s stepdaughter, ended with a jury award of $13.15 million to the stepdaughter.

Here’s the backstory:

Through his will, Steinbeck left ownership of the copyrights he renewed in his lifetime to his wife and a $50,000 trust to each of his two sons (from a previous marriage).

By law, Steinbeck’s wife as well as his sons were entitled to royalty payments for the works renewed after his death (the law required publication/registration and permitted renewal back then; it’s different now).

A 1983 settlement agreement increased the sons’ share of the royalty payments in exchange for giving Steinbeck’s wife control over the exploitation of the copyright (which means the right to license the work to third parties, turning it into royalty-generating movies, spin-offs, etc).

Steinbeck’s wife died in 2003, leaving ownership/control of the copyrights to her heirs, including Steinbeck’s step-daughter.

In the most recent litigation, the step-daughter alleged that the son and daughter-in-law thwarted attempts to turn Steinbeck’s works into royalty-generating projects, including new movies (projects that purportedly interested Steven Spielberg and Jennifer Lawrence).

The jury sided with the step-daughter, and the daughter-in-law has stated she will appeal. After that, let’s hope the battle over the copyrights to Steinbeck’s work will finally come to an end. Unfortunately, it’s possible that new legal issues will arise among the heirs until John Steinbeck’s work falls into the public domain, a date that the law has pushed back numerous times since Steinbeck’s death.

Based on the law at the time Steinbeck wrote his novels, when authors were entitled to two consecutive 28-year-terms of copyright protection (56 years total), his books would be in the public domain by now. However, the 1976 amendments to the Copyright Act changed the copyright period for Steinbeck’s novels to 75 years. Then, in 1998, for works still within the 75-year-period, amendments to the law extended copyright protection by another twenty years. The extension was challenged as unconstitutional but, in 2003, the Supreme Court upheld it 7-2 in Eldred v. Ashcroft. The result is 95 years–nearly a century–of copyright protection.

Think of all the judicial resources our courts would’ve saved had Steinbeck’s works entered the public domain after 56 years instead of 95? Think of all the derivative works–the retellings, the new movies–we could’ve enjoyed by now?

Oppressively long copyright protection does nothing more than stifle creative derivative works and enrich heirs who often have merely a tangential relationship to the person who created the work. As Justice Breyer wrote in his dissent in Eldred:

[A]ny remaining monetary incentive is diminished dramatically by the fact that the relevant royalties will not arrive until 75 years or more into the future, when, not the author, but distant heirs, or shareholders in a successor corporation, will receive them. … What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

With Steinbeck’s books, we may finally see more derivative projects develop, but only if the creators of those projects are willing and able to pay the price Steinbeck’s wife’s heirs want for it.

As I watched the news coverage of the violent white nationalist rally in Charlottesville, Virginia, I thought about a historical figure I didn’t expect to think about at a time like this: Justice John Marshall Harlan.

Born in Kentucky in 1833, Harlan was a defender of slavery who ultimately changed his views enough to support Reconstruction and write the sole dissent in Plessy v. Ferguson, the 1896 case in which the majority of the United States Supreme Court (everyone except for Harlan) upheld racial segregation laws under the “separate but equal” doctrine.

Harlan’s dissent in Plessy isn’t progressive by today’s standards–for example, he acknowledged the “dominance” of the “white race” and exhibited anti-Chinese sentiment–but it was certainly progressive for that all-white, all-male court at the turn of the last century. He proclaimed, “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” and stated that the majority opinion’s decision to uphold racial segregation would “prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case,” which, if you remember, is the case from 1857 that denied African Americans citizenship.

Harlan was right about Plessy, as the Supreme Court acknowledged in 1954 in Brown v. Board of Education, which finally declared race-based segregation laws and policies unconstitutional. He was ahead of his time for someone of his privileged background.

Why were Harlan’s views different?

As many scholars have argued, he had a brother who was a slave, a man who became free at the age of 32. His name was Robert Harlan. They had the same father, and they also had what appears to be a close relationship.

It is plausible that John Marshall Harlan’s relationship with Robert Harlan shaped the Supreme Court Justice’s enlightened views on race and particularly his dissent in the landmark 1896 Plessy v. Ferguson case.

By the majority’s reasoning in Plessy, with which Harlan disagreed, legislatures could segregate the two Harlan brothers without violating the Constitution. Justice Harlan had a personal basis for seeing the repugnance of segregationist laws, a basis the other Justices either didn’t have or didn’t acknowledge.

I hope people do not need to feel directly affected by racism to care about it, but personal connections seem to make a difference.

While watching those angry white men marching in Charlottesville, I wondered how they would react if they met family members who weren’t white. Or, perhaps more likely, learned through a DNA test that their lineage included African, Asian, Native American, Jewish, Middle Eastern, or Aboriginal ancestry. As genetic studies have shown, many Americans come from racially mixed backgrounds and don’t know it.

For those who somehow pride themselves on their whiteness, would it make a difference to know that they wouldn’t exist but for the ancestors from diverse backgrounds they abhor? Wouldn’t it show them that we are all connected?

Sadly, maybe not. In a Mother Jones profile of right-wing extremist Richard Spencer (the one who was punched on camera on Inauguration Day), he confided that a genetic test revealed he had a small percentage of African heritage. But he dismissed it entirely, saying, “I almost wonder if this is thrown in [by 23andMe] for shits and giggles. Like, ‘We’re all Africans.’”

There may be no hope for white supremacists who are so morally bereft that they proudly display their bigotry. But what about the people who don’t purport to hold these beliefs but who support a government agenda that exacerbates racial inequality (an agenda, coupled with rhetoric, that emboldens white supremacists)? I wonder how they would respond to a “surprise” in their ancestry. Are they capable of changing?

In a comment to that post, Melanie from Grab the Lapels wrote: “I would love to read a blog post from you about voting and the prison population. I’m not sure I understand what rights inmates have/don’t have and why.”

State approaches to felon disenfranchisement vary tremendously. In Maine and Vermont, felons never lose their right to vote, even while they are incarcerated. In Florida, Iowa and Virginia, felons and ex-felons permanently lose their right to vote. Virginia and Florida have supplementary programs which facilitate gubernatorial pardons. The remaining states each have their own approaches to the issue.

[Check out NCSL’s chart for more information, linked above]

About six million Americans are not allowed to vote because of a felony conviction. This type of disenfranchisement stems from an archaic concept we inherited from Europe known as “civil death,” the idea that the government should punish people for their crimes by denying them the right to ever fully participate in society again.

Our modern laws have largely departed from this overly harsh concept of punishment, except in certain circumstances, such as the voting rights of felons and ex-felons.

The states that treat individuals convicted of felonies the worst when it comes to voting have more racial diversity than the states that treat them the best. The only two states that do not disenfranchise felons are Vermont and Maine, racially homogeneous places where well over 90% of the population is white. Racial and ethnic minorities are overrepresented in the prison populations in these states, but the vast majority of inmates are white (see VT’s prison profile here, and see ME’s prison profile here).

When I saw these demographics, I thought about the recently released Urban Institute Study that found that “States with larger African American populations, all else equal, have less generous and more restrictive TANF [Welfare] policies.” As the authors explained:

If voters or policymakers perceive people receiving welfare as different from themselves, they may believe that welfare dependency is caused more by personal shortcomings than by circumstances beyond one’s control.

A similar bias may be at work when it comes to voting rights. In racially homogeneous states, the general population and lawmakers are more likely to identify with prison inmates, making them both less likely to see individuals with criminal histories as unredeemable and less likely to feel threatened by maintaining their right to vote.

Laws prohibiting felons from voting have a discriminatory effect on racial minorities, whose right to vote, once finally guaranteed by the Constitution, has been long subjected to discriminatory suppression efforts. [And let’s not forget the ways our criminal justice system is biased against racial minorities; see the comments below]

In The New Jim Crow,* in which Michelle Alexander argues that we have redesigned America’s Jim Crow racial caste system through mass incarceration, we meet Jarvious Cotton, a man who cannot vote:

Like his father, grandfather, great-grandfather, and great-great-grandfather, he has been denied the right to participate in our electoral democracy. Cotton’s family tree tells the story of several generations of black men who were born in the United States but who were denied the most basic freedom that democracy promises–the freedom to vote for those who will make the rules and laws that govern one’s life. Cotton’s great-great-grandfather could not vote as a slave. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation. His father was barred from voting by poll taxes and literacy tests. Today, Jarvious Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole.

Mr. Cotton was one of the plaintiffs in Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998),** which held that:

Although it appears that the constitutional disqualifying provision [prohibiting the vote] originally intended to discriminate against black felons, its recent re-enactment by the people of Mississippi has not been shown to bear that taint.

The opinion, written by Judge Edith H. Jones (who is still on the Court), is truly incomprehensible. Not only is it hard to believe the court would describe a reenactment from 1968 as ‘“recent” in a 1998 opinion, but its reasoning is also hard to accept:

The state defendants do not dispute that § 241 was enacted in a [sic] era when southern states discriminated against blacks by disenfranchising convicts for crimes that, it was thought, were committed primarily by blacks…

[However,] Section 241, as enacted in 1890, was amended in 1950, removing ‘burglary’ from the list of disenfranchising crimes. Then, in 1968, the state broadened the provision by adding ‘murder’ and ‘rape’–crimes historically excluded from the list because they were not considered “black” crimes. Amending § 241 was a deliberative process.

…Because Mississippi’s procedure resulted both in 1950 and in 1968 in a re-enactment of § 241, each amendment superseded the previous provision and removed the discriminatory taint associated with the original version.

(Emphasis added).

So, basically, in the court’s opinion, 1950s and ‘60s Mississippi was a post-racial utopia, despite the countless murders of African Americans and civil rights workers in that state, including Medgar Evers in 1963 and James Chaney, Andrew Goodman, and Michael Schwerner in 1964. I’m also shocked the court would believe that racists in 1950 and 1968 didn’t wrongly consider rape a crime committed predominately by black people. So-called “protection” of white women from black men was the stated reason for numerous lynchings and prosecutions in the south, such as the murder of Emmett Till in Mississippi in 1955 and the prosecution of the Scottsboro Boys in 1930s Alabama. It’s also the basis of the fictional legal case at the heart of the 1961 Pulitzer Prize winning novel, To Kill a Mockingbird.

The Cotton opinion is now two decades old, but it still stands, as does Richardson v. Ramirez, 418 U.S. 24 (1974), in which the United States Supreme Court upheld the constitutionality of laws prohibiting felons from voting.

It’s time for our courts to revisit this issue, though I’m not so sure they would come to a different conclusion. As Michelle Alexander says in The New Jim Crow, the disenfranchisement of felons exemplifies the old saying that “The more things change, the more they remain the same.”

**Mr. Cotton’s appeal was dismissed before reaching the appellate court, so the Cotton opinion is about another plaintiff in that case, Keith Brown, who was serving a sentence for armed robbery in Mississippi and wanted to vote.

Arkansas State Representative Kim Hendren thinks Howard Zinn’s books are so dangerous that he’s introduced state legislation to prohibit public and charter school children from reading them.* Zinn’s most famous book, A People’s History of the United States, presents a view of history that focuses on the experiences of marginalized groups that mainstream history has forgotten or mischaracterized.

I don’t know the basis of Hendren’s problem with Zinn’s books, though I have my suspicion that it’s rooted in racism and sexism. Why else would a legislator target only Zinn’s books, which try to focus the spotlight on the experiences of people of color, the working class, and women? Some people have criticized Zinn’s book as “biased,” but really, what history book isn’t skewed in some way? As Zinn writes in the Afterword of A People’s History:

I know that a historian (or a journalist, or anyone telling a story) was forced to choose, out of an infinite number of facts, what to present, what to omit. And that decision inevitably would reflect, whether consciously or not, the interests of the historian.

Zinn’s method is no different from what any historian does. He’s just more honest about it than most.

Hendren is free to disagree with Zinn’s perspective of history, but he wants to do more than that. He wants to ban it. He wants to make sure that children in his state are only exposed to a limited, politically-approved version of history because, I presume, he believes new or “different” ideas will infect the impressionable minds of Arkansas’s youth.

All I can say to folks like that is this: exposure to many different ideas doesn’t brainwash people. It’s the exposure to only one idea or belief system that does. If the mere exposure to new ideas is enough for those old beliefs to crumble, then its proponents should stop to consider why their beliefs aren’t more persuasive. In my opinion, an idea that can’t withstand a fair debate isn’t an idea worth passing onto the next generation.

If Hendren’s colleagues actually pass this short-sighted piece of legislation, they will probably find the law challenged in court under the First Amendment of the United States Constitution (and other laws) — assuming Paul Ryan’s and Mitch McConnell’s Congress and Donald Trump don’t make civil rights lawsuits impossible by then (I’m serious about that; see Lawmakers Want to Take Away Your Right to a Fair Trial).

On February 27, 2017, District Judge Mark Hornak, an Obama appointee, issued a thorough opinion in Evancho v. Pine-Richland School District,ruling in favor of three transgender high school students at a public school (see below for a link to the full opinion). The Court analyzed whether the school district violated federal law when it forced the students to use either single-user bathrooms or common bathrooms matching their assigned sexes (rather than their gender identity).

I’ve written about discriminatory bathroom policies in two previous posts:

In these posts, I highlight how fiction can help us understand the impact of discriminatory bathroom policies on the people they target (something I make an effort to understand as a cisgender person). I focused on a paragraph from Alex Gino’s George, a middle grade novel, that shows some of the harms transgender students experience when schools prohibit them from using the bathroom that matches their gender identity:

[George**] stumbled, sobbing, into the bathroom—the boys’ bathroom. Her lips trembled and salty tears dripped into her mouth. George hated the boys’ bathroom. It was the worst room in the school. She hated the smell of pee and bleach, and she hated the blue tiles on the wall to remind you where you were, as if the urinals didn’t make it obvious enough. The whole room was about being a boy, and when boys were in there, they liked to talk about what was between their legs. George tried never to use it when there were any boys inside. She never drank from the water fountains at school, even if she was thirsty, and some days, she could make it through the school day without having to go once.

The facts underlying the Evancho opinion similarly highlight the harmful impact discriminatory policies have on transgender children at school. As the judge states, “Court cases involve real people and real events,” and so the facts in the opinion reflect the lived experiences of the three students who filed the lawsuit. As the judge recounts, one of these students explained that the exclusionary bathroom policy caused “her serious emotional and other distress, making her feel unsafe, depressed, marginalized and stigmatized…”

Based on the experiences of these three students, and the fact that the school district was unable to support its reasons for implementing the policy, the Court determined that the students would likely succeed on an Equal Protection claim against the school. It applied intermediate scrutiny (meaning that the different treatment between transgender and cisgender students must be supported by “an exceedingly persuasive reason, advance an important governmental interest and have a direct relationship to the important governmental interest furthered by it.”) As a result, the school must allow the plaintiffs to use common restrooms consistent with their gender identities while the lawsuit continues (this is a preliminary injunction).

This is just one federal court of many in this country, but it’s a hopeful sign that perhaps America didn’t completely abandon our Constitutional principles when Donald Trump seized the White House. We shall see.

*Title IX applies to any educational program that receives federal funding (including both public and private schools), while the Constitution only applies to public entities.

**I inserted “George” at the beginning of the quote because that is the name that appears throughout the paragraph in the novel. However, Melissa is the name the child prefers to use. For more on the recalcitrance of the name “George,” seeGeorge or Melissa? It Matters.

These derivative works would be fine if the classic books were in the public domain, like L. M. Montgomery’s Anne of Green Gables, a source of inspiration for Anusha of Prospect Corner(Modern Middle Grade), and Jane Austen’s Persuasion, the basis for Amelia Elkins Elkins(Contemporary Fiction).

While at least one forthcoming KinderGuide is based on a public domain work–Jane Austen’s Pride and Prejudice–the majority are based on books that are still under copyright. The first set of KinderGuides includes the following copyrighted works: Truman Capote’s Breakfast at Tiffany’s, Ernest Hemingway’s The Old Man and the Sea, Jack Kerouac’s On the Road, and Arthur C. Clarke’s 2001: A Space Odyssey.

Moppet Books does not have a license to borrow from these novels, prompting the literary estates of Capote, Hemingway, Kerouac, and Clarke, Penguin Random House, and Simon & Schuster to sue them for copyright infringement. The plaintiffs filed the complaint–available here (PDF)–in the United States District Court for the Southern District of New York on January 19, 2017.

According to the complaint:

Although defendants call their Infringing Works ‘guides,’ the Infringing Works do not purport to be companion reference books or study guides for readers of the novels, such as those commonly used by college students. Indeed, it is hard to imagine a situation in which a 6-year-old child would have the need for a ‘study guide’ to inform his or her understanding of the adult novels.

Yes, it is hard to see a Kindergartener using a “study guide” for these classics, but the derivative works could still be “fair use” (and therefore not copyright infringement) depending on its (1) purpose, (2) nature, (3) the “amount or substantiality of the portion” of the original work used; and (4) the impact of the use on the original work’s market. Copyright Act, 17. U.S.C. § 107.

Without examining the allegedly infringing work against the original novel, I can’t say whether I think these KinderGuides violate copyright law. My gut sense is that it could be copyright infringement if the KinderGuides add little new content to the original works (and thus aren’t sufficiently “transformative”) and use a substantial portion of the original works. We’ll see what happens with the case.

Interestingly, this isn’t the first time Moppet’s Frederik Colting has found himself in court facing similar allegations. He is the author (writing under a pen name) of 60 Years Later: Coming Through the Rye, the unauthorized sequel to J.D. Salinger’s Catcher in the Rye. In 2009, Salinger filed suit against Colting, alleging copyright infringement. In the settlement, Colting agreed not to sell his derivative novel in the United States.

Among the “coming titles” in Colting’s KinderGuides series is a children’s version of Catcher in the Rye. I wonder what the Salinger estate thinks about that.

UPDATE 9/12/17 (see Publishers Weekly, citing Judge Rakoff’s opinion): “Fair use, however, is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorized derivative work into a protectable publication.” The judge permanently enjoined distribution of the works.

I don’t often come across a character in a book who shares my first name: Amal, which is Arabic in origin and generally means “hope.” Thanks to Amal Clooney,* more people in my part of the world are aware of it now, but when I was a kid, I didn’t come across any other “Amals” in reality or in fiction. The only exception is “Amahl” from the opera Amahl and the Night Visitors, and not only is that character’s name spelled differently from mine, but we’re also different genders. His existence encouraged many people to assume I’m male when they see my name on paper, a mistake that used to bother me when I was a kid.

Back then, I would have appreciated a book like Does My Head Look Big in This? by Randa Abdel-Fattah. This light, young adult novel features an Australian-Muslim-Palestinian teenager named Amal Mohamed Nasrullah Abdel-Hakim. Like me, she knows what it’s like to look different from everyone else at school, to practice a different religion, and to have a name that people frequently misspell or misstate. As she recounts hearing:

Hey Amal, did you notice the sub teacher called you ‘Anal’ at rollcall this morning?

I’m familiar with that embarrassing typo too. I often receive mail addressed to “Mr. Anal [B.].” Spell check is not my friend.

It was nice to read a book with a character who knows what this feels like. Amal Abdel-Hakim is smart, funny, and brave enough to assert her identity even when she knows it won’t be easy. In the novel, she decides to wear a hijab full-time, including at her snooty private school. Ms. Walsh, the principal, is opposed to Amal’s choice, saying,

Amal… hmmm… I don’t want to- I mean, I want to tread delicately on this… sensitive issue… hmm… Did you speak to anybody about wearing… about abandoning our school uniform?

Ms. Walsh assumes that Amal’s parents are forcing her to wear the headscarf–which is not true–and then tells Amal that she’s violating the school’s “history of tradition” by deviating from the strict uniform policy. It’s an Australian private school, which the novel suggests might be able to get away with prohibiting students from wearing clothing associated with their religion. You’ll have to read the novel to find out what happens.

In my country, the United States, private schools are often able to impose strict dress codes that prohibit religious clothing or symbols because students at private schools don’t have constitutional rights, including the First Amendment’s right to freely exercise religion. Public schools are another matter. As the U.S. Supreme Court said in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”** However, courts have upheld many restrictions on student expression, including restrictions that impinge on religious freedom, especially if the restriction is viewpoint- and content-neutral. See, e.g. Jacobs v. Clark County School District, 529 F.3d 419 (2008) (upholding a dress code that prohibited a printed message that reflected a student’s religious beliefs).

These days, whatever the constitution may or may not require, many schools avoid the issue by choosing to have dress codes that include religious exemptions. Here’s one example (PDF): “Head apparel (hats and hoods) are not permitted to be worn inside the school building, with the exception of those worn for medical or religious purposes,” thus permitting hijabs and similar religious clothing.

*Thanks, but no thanks. Virtually everyone I meet for the first time points out that (1) I share my name with George Clooney’s wife, and (2) we’re both lawyers. I’m tired of having this conversation over and over again. [Update: And now that Amal and George are expecting twins, they’ll add that to the list too!]

**Public school teachers don’t “shed their constitutional rights [] at the schoolhouse gate” either. However, at least in my state, they do not have the right to wear religious clothing at school. In Pennsylvania, a state law prohibits public school teachers from “wearing… any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect, or denomination.” 24 Pa. Cons. St. Ann. § 11-1112; see U.S. v. Bd. of Educ. for Sch. Dist. of Philadelphia, 911 F.2d 882 (3d Cir. 1990) (upholding the statute under an employment discrimination law because “barring religious attire is important to the maintenance of an atmosphere of religious neutrality in the classroom”).

***For another opinion on Does My Head Look Big in This?, see: Huntress of Diverse Books (“Abdel-Fattah took a topic that is discussed in such detail so often (nowadays and at that time) and was able to make me feel like I wasn’t being lectured.”)